PacifiCorp v. EPA, No. 13-02187, 2015 WL 4036192 (D. Colo. July 1, 2015) (Moore, J.)

PacifiCorp v. EPA, No. 13-02187, 2015 WL 4036192 (D. Colo. July 1, 2015) (Moore, J.)

Re: Request for records concerning WildEarth Guardians v. Jackson

Disposition: Denying plaintiff's motion for attorney fees and costs

• Attorney Fees, Eligibility:  "The Court agrees that [plaintiff] substantially prevailed as its lawsuit 'was reasonably necessary and substantially caused the requested additional records to be released'" and, "[t]herefore, [plaintiff] is eligible for a fee award."
   
• Attorney Fees, Entitlement:  The court finds that plaintiff is not entitled to attorney fees or costs.  Regarding the commercial benefit to the plaintiff and the nature of the plaintiff's interest in the records sought, the court finds that "[these] factor[s] weigh[] against an award of attorney's fees."  The court explains that "[plaintiff] was motivated by its own private, commercial interest in seeking information under the FOIA and in pursuing this litigation."  Also, "[plaintiff's] argument that it derived no commercial benefit from the FOIA requests is similarly unavailing as such bare statement, without more, does not support such a conclusion."  Finally, the court rejects plaintiff's argument that "EPA's rulemaking concerning the haze program for Wyoming may affect all entities thereby regulated and the public in general, [because] the evidence shows that is not what precipitated this litigation."  Regarding the benefit to the public, the court finds that "there is no evidence that the information sought—and received—were disseminated to the public[,]" and, therefore, "it is unclear how such information facilitated—or could have facilitated—any 'robust public review' as [plaintiff] contends."  Regarding whether defendant's withhold of the records had a reasonable basis in law, the court is split on this factor and finds that "as to the release of information under the attorney-work product exemption, this issue was unsettled in the Tenth Circuit and the EPA had a reasonable basis in law for its position."  Also, "the Court did find the EPA's initial response was inadequate, but there was no finding of bad faith."  "Further, some of the EPA's actions in its initial response were unreasonable (e.g., the initial failure to produce segregable factual material from documents withheld under all privileges claimed)."  Overall, the court concludes that "[w]hile this weighs in favor of an award of fees, an award is nonetheless not justified in light of the Court's determination that the other factors weigh heavily against a finding of entitlement to fees."